Financial Services Commission of Ontario
Commission des services financiers de l'Ontario
Neutral Citation: 2018 ONFSCDRS 84
Appeal P16-00061
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JONATHAN LEDUC-MOREAU Appellant
and
ECHELON GENERAL INSURANCE COMPANY Respondent
BEFORE: David Evans
REPRESENTATIVES: Andrew Kerr for Mr. Leduc-Moreau Jamie Pollack for Echelon General Insurance Company
HEARING DATE: On the record with submissions received by March 29, 2018
APPEAL EXPENSES ORDER
Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:
- Mr. Jonathan Leduc-Moreau shall pay Echelon General Insurance Company its legal expenses of the appeal proceedings herein, fixed at the amount of $6,000, inclusive of disbursements and HST.
April 20, 2018
David Evans Director's Delegate Date
REASONS FOR DECISION
In a decision dated November 30, 2017, I upheld Arbitrator Sapin's order that Mr. Leduc-Moreau did not suffer, in a 2009 automobile accident, a catastrophic impairment under the SABS-1996.1
Echelon now seeks $6,851.93 for its legal expenses of the appeal.
There seems to be no dispute that Echelon is entitled to its expenses, and I so find.
Mr. Kerr, counsel for Mr. Leduc-Moreau, advised that he was unable to provide a response or any objections to Echelon's Bill of Costs because he was unable to reach his client or obtain instructions from him. Instead, he provided his own Bill of Costs totaling $3,105.35 inclusive for me to consider when setting the costs amounts.
In that regard, I note that the disbursements are comparable between the two bills. The legal fees for the lead counsel, Mr. Kerr for the insured and Mr. Pollack for the insurer, are also the same, namely the Legal Aid Rate of $136.43. The main difference between the two bills is thus the amount of preparation time for written submissions.
However, as set out in my decision on the merits,
Counsel for Mr. Leduc-Moreau never did provide written submissions for the appeal. After I made several attempts to obtain them, there was a teleconference at which a final deadline for them was set. The deadline was not met, so I converted the hearing to one on the record, to be determined based on the Notice of Appeal and additional submissions provided on whether to grant a stay of the Arbitrator's expenses order, and on the written submissions provided by Echelon.
Because Echelon did provide submissions and had to prepare for the hearing that was ultimately on the record, I find that Echelon is entitled to costs that are greater than Mr. Kerr's.
As to the amount, a global assessment of reasonable expenses is more appropriate than a line-by-line one.
The total amount claimed by Echelon is higher than the average $2800 for successful insurers determined in Bains and RBC General Insurance Company, (FSCO P09-00005, September 8, 2010). However, the Legal Aid rates payable to insurer's counsel have increased since then, so the awards should reflect that. This was also a complicated case, as it dealt with catastrophic impairment, and counsel prepared extensive submissions upon which I relied.
Accordingly, I find that a fair global assessment would be $6,000.
April 20, 2018
David Evans Director's Delegate Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.